A v A

Apparent consent to children remaining in another Convention country does not amount to acquiescence where the parent’s subjective intention was to prevent their disappearance and the parent acts reasonably promptly to secure their return. Acquiescence requires conduct clearly and unequivocally inconsistent with insisting on summary return. The issue is not estoppel and does not depend on whether the other parent changed position in reliance on the apparent consent. Where the defence is not established, return under the Hague Convention is mandatory. Even if acquiescence is established, the court retains a discretion, which should be exercised in accordance with the Convention’s policy of protecting agreed holiday contact and preserving the jurisdiction of the children’s home country.

The father sought the return to Portugal of his two younger children under the Hague Convention. The children had lived with him in Portugal for four years and had travelled to England to spend the summer holiday with their mother. During the holiday, the father apparently agreed that they could remain in England and agreed to send their clothes. He said that the agreement was a pretence, made because he feared that the mother would move with the children to an unknown address.

When the children did not return, the father applied through the Portuguese Central Authority. The mother relied on the father’s apparent agreement as acquiescence under Article 13(a). The central issues were whether the father had acquiesced and, if so, whether the court should nevertheless order the children’s return.

1. Acquiescence. Applying the approach in Re H (Abduction: Acquiescence) (1997) 1 FLR 872, acquiescence depends on the wronged parent’s actual subjective intention. Apparent conduct is insufficient unless the words or actions clearly and unequivocally show that the parent is no longer insisting on summary return.
2. The father’s apparent consent was made to maintain the mother and children at a known address. He continued to believe that the children would return to Portugal. His failure to send their clothes and his application to the Portuguese Central Authority followed promptly once it became clear that the children would not return. His conduct was therefore not clearly and unequivocally inconsistent with insisting on their return.
3. The issue was not estoppel. The mother’s reliance or change of position was not the governing test. The relevant question was whether the father had, in fact, gone along with the children’s continued retention.
4. The mother had not established the Article 13(a) defence. Under Article 12 of the Convention, the court was therefore required to order the children’s return to Portugal.
5. Alternatively, if acquiescence had been established, the discretion would have been exercised in favour of return. The children were Portuguese, had lived principally in Portugal, were settled there with their father and paternal grandmother, and had been expected to remain in England only for holiday contact. The policy identified in Re HB (Abduction: Children’s Objections) (1997) 1 FLR 399 supported upholding the Convention’s protection for visits.
6. The children’s views did not amount to a significant objection to return. The children were ordered to return to Portugal, where the Portuguese courts could determine with which parent, and in which country, they should live.

First-instance Hague Convention proceedings in the High Court Family Division. No appellate history is stated in the judgment.